Applicability of the Succession Act
Before beginning with the introduction of a Will, it is necessary to understand the general applicability of the Succession Act, 1925 (hereinafter “the Succession Act” — the law which governs testamentary succession in India) and the persons to whom it applies. All cases of testamentary succession (i.e. when the deceased has left behind a Will) in India are governed by Part 6 of the Succession Act1 except:
(a) where the testamentary succession concerns the property of any Muhammadan; in other words, this part shall not apply to Muslims; and
(b) where the testamentary succession concerns the property of any Hindu, Buddhist, Sikh or Jaina except:
(i) where such Hindu, Buddhist, Sikh or Jaina has executed (signed) his Will and/or codicil in Bombay, Madras or Bengal; and
(ii) where such Hindu, Buddhist, Sikh or Jaina has executed his Will, though outside such territories but relates to immovable property situated within such territories.
In other words, if the deceased is a Hindu, Buddhist, Sikh or Jaina and has either signed his Will in Bombay, Madras or Bengal or (may not have signed his Will in such territories but) has immovable property located within such territories — the provisions of Part 6 which are set out in Schedule 3 of the Succession Act shall apply.
For ease of understanding, the article has been divided into two parts i.e. (a) what goes behind the making of a Will /codicil; and (b) the procedural steps required to be undertaken once the Will/codicil comes into effect and/or on the demise of the deceased (in cases where there is no Will).
A. Making of a Will/codicil
Legal requirements of a Will
A Will is a declaration of the deceased’s (read as “testator’s”) intention qua his property which he desires to give effect to on his demise. A Will is prepared by the testator at any point during his lifetime. So far as the form and content of a Will is concerned, there is no format prescribed in law that needs to be adhered to while drafting a Will, as long as the wordings used therein make known the intention of the testator qua the manner in which he intends to dispose of his property.2 However, for it to constitute a valid and legally binding Will, the only legal requirements under the Act are that: (a) the testator is of sound mind (i.e. he knows what he is doing by such disposition of his property); (b) there was no fraud, coercion or any form of importunity that took away from the testator his free agency in making of his Will; (c) he has himself signed the Will or someone else has signed his Will in his presence and under his direction; (d) that the Will is attested by two (or more) witnesses — each of whom has seen the testator sign3 and each of whom has signed the Will in the presence of the testator. Apart from these 4 legal requirements, there is no other legal requirement to be satisfied while executing a Will. However, there are exceptions to this — so far as Muslims are concerned, Mohammedan law does not demand that a Will made by a Mohammedan take a written form. It does not demand a particular form at all. It can be made either verbally or in writing. What is necessary is to ascertain the intention of the testator. Additionally, Mohammedan law does not require attestation of the Will either.4
Who can be an executor under the Will?
An executor is a person to whom the execution of (i.e. giving effect to) the last Will of a deceased person is, by the testator’s appointment, confided. In other words, every testator ought to appoint a named person under his Will/codicil as the executor; someone in whom he reposes confidence, who would duly execute, administer and carry out his wishes as intended under the Will/codicil. There is no limit to the number of persons who may be appointed as executors. In the event the executor is also a beneficiary under the Will, he has no preference to his legacy. In fact, the law, particularly, Section 141 lays down a condition precedent to be fulfilled by the executor before taking his legacy under the Will i.e. unless he proves the Will or otherwise manifests an intention to act as an executor, he shall not take his legacy.
Who can be attesting witnesses to a Will?
To “attest” means to bear witness to a fact. A valid attestation of a Will has to meet the requirements of Section 63(c) of the Succession Act i.e. two or more witnesses shall have attested the Will, in a manner as already explained in the foregoing paragraph [“requirements of a Will” at (d) above]. To be an attesting witness, it is essential that the witness should have put his signature animo attestandi i.e. for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement of his signature. If a person puts his signature on the document for any other purpose, he is not an attesting witness.5 The provisions of the Succession Act qua this subject applies differently to the following persons:
(i) So far as Muslims are concerned, as already mentioned above, a Muslim is not required to have his Will attested even if the same is reduced in writing.
(ii) So far as Hindus, Buddhist, Sikh or Jaina are concerned, the attesting witness can be a legatee and he/she will not lose his legacy by attesting the Will.
(iii) So far as Parsis and Christians are concerned, an attesting witness cannot be an executor or a legatee under the will.6 However, in the event such a situation arises, such Will shall not be deemed to be insufficiently attested, but such bequest or appointment shall be void so far as it concerns the attesting witness or the wife/husband of such attesting witness or any person claiming under either of them. That being so, Section 67 explains that a legatee under a Will does not lose his legacy by attesting a codicil which confirms the Will.
Under Section 68 of the Act which applies to Hindus, Buddhist, Sikh, Jaina, Parsis and Christians merely by being an executor or a legatee (a person who receives a bequest) under the Will, the attesting witness shall not be disqualified as a witness to prove the execution/validity of the Will.
Codicil to a Will
In the event the testator is desirous of explaining, altering or making any additions to the dispositions already made in his original Will, the same can be done by way of a writing which is called a “codicil”. A codicil is deemed to form part of the original Will to which it relates. The 4 legal requirements mentioned above qua execution of a Will shall similarly apply to the valid execution of a codicil. So also, the evidence adduced in proof of execution of a codicil must satisfy the same requirements as apply to proof of execution of a Will.
Doctor’s certificate and registration of a Will
There is no rule of law or of evidence which requires a doctor to be present when a Will is executed.7 However, since, “soundness of mind” is a requirement to be satisfied in law to prove the valid execution of the Will, it would be prudent to have a doctor’s certificate, of or around the same date as the execution of the Will, since this would assist and persuade the court in concluding that the testator was of sound mind while executing his Will.
Again, there is no legal requirement to have a Will registered before the Registrar/Sub-Registrar of Assurances. The layman often labours under the misimpression that registering a Will would insulate it from being challenged in court or that merely by registering the Will, the need to prove such Will is dispensed with. This is entirely incorrect. There is no special sanctity accorded to registered Wills. Every Will (with the exceptions stated above in this article) is required to be proved as per Section 68 of the Evidence Act, 1872 (Evidence Act), whether registered or not. Section 68 requires the evidence of at least one attesting witness to be led, to prove the genuineness of the Will. The scope of such attesting witness’ evidence is delineated in Section 63(c) of the Succession Act i.e. to lead evidence on the aspect of attestation. As already stated above, to be a valid attesting witness, such witness would have had to put his signature animo attestandi. In the ordinary course of things, the Sub-Registrar puts his signature on the document only in discharge of his duty under Section 59 of the Registration Act, 19088 and not for the purpose of animo attestandi. It is not the duty of the Sub-Registrar to attest such Wills or even verify if such attestation has taken place, in accordance with Section 63(c) of the Succession Act. Therefore, merely by affixing his signature on the Will (which he does so only to discharge his duties under the Registration Act), it does not elevate the Registrar to the status of a “statutory attesting witness”.9 However, that being so, in the facts and circumstances of a given case, a Sub-Registrar can be an attesting witness if he fulfils the character of an attesting witness as required by law i.e. by entering the witness box as per Section 68 of the Evidence Act and satisfying the court and proving his testimony as per Section 63(c) of the Succession Act.10 His testimony would be liable to be appreciated and evaluated like the testimony of any other attesting witness. No higher value would be given to his testimony. The court, while appreciating his testimony, would have to consider the manner in which the events took place at the time of registration of the Will and the role played by the Sub-Registrar.11
The upshot being, the only benefit, so to speak, of registering a Will is that the certificate of registration12 raises a presumption that the Sub-Registrar has regularly performed his duty in the normal course of things, thus, lending credence to the existence of such registered Will. However, whether such Will was validly executed or attested remains to be proved in court.
Revocation of Will and/or codicil
A Will can be revoked at any time during the lifetime of the testator. Revocation can be done by the testator himself: (a) by executing another Will or codicil or some writing declaring an intention to revoke and executed in the same manner as discussed hereinabove; or (b) by simply burning, tearing or otherwise destroying such writing with the intention of revoking the same. Additionally, and only so far as Parsis and Christians are concerned, in the event such Parsi/Christian testator gets married (i.e. a marriage that is valid in law), his/her Will shall automatically stand revoked by this statutory provision made in law.13
B. Steps to be taken upon the Will coming into effect
A Will /codicil comes into effect immediately upon the demise of the executant/testator. On such event happening, the executors or the beneficiaries or the legal heirs of the deceased may apply for either a probate or letters of administration or legal heirship certificate or succession certificate, as the case may be. Apart from these 4 remedies available under law, there is no other legally recognised manner of administering the deceased’s estate. Each of these has been dealt with below.
The Will/codicil takes effect immediately upon the demise of the testator. The executor obtains his title by virtue of the will/codicil (and not from the date when the Will/codicil is probated). As a general rule, Will and its codicil/s are admitted to probate together. All the properties mentioned in the Will/codicil immediately vest in the executor, who is the deceased’s legal representative (living substitute, so to say) for all purposes. The law knows no interval between the date of demise and the vesting of the deceased’s property. Those properties that are not mentioned in the Will do not vest in the executor; they would be considered intestate property for which an administrator would need to be appointed14. However, the executor must apply for probate of the Will/codicil, only because it is the grant of such probate by a competent court that will establish the executor’s right to act as such.15
Letters of administration
Letters of administration with the Will annexed (Section 276)
In the event the deceased has left behind a Will but has not appointed an executor or has appointed an executor but for certain reasons16 is incapable/refuses to act as an executor, then, the universal or the residuary legatee17 may be admitted to prove the Will, and letters of administration with the Will annexed may be granted to him. In the event there is no residuary legatee, then, the legal heirs or the other legatees having a beneficial interest, or the creditor of the deceased would be admitted to prove the Will and administer the estate. However, Section 235 expressly states that no letters of administration with the Will annexed shall be granted to any other legatee other than the residuary legatee until a citation has been issued/published, calling upon the next of kin (heirs) to accept or refuse letters of administration. This citation is intended only to afford an opportunity to the next of kin, in other words, a preferential right, to administer the estate, before the letters may be given to the other legatees/creditors.
Letters of administration without any Will annexed (Section 278)
Under Section 218, in the event the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina, and has died intestate, the administration of his estate may be granted to any person who according to the rules of intestate succession may be entitled to the whole or part of the estate of such deceased. Section 218 is merely an enabling provision and when read with Section 212(2) makes it perfectly clear that it is not obligatory to take out administration in the case of such deceased persons. Under Section 219, if the deceased was not a person belonging to any of the classes mentioned in Section 218, then, the widow of the deceased takes administration in preference to next of kin unless a case of unfitness on her part is established. Therefore, the widow gets priority to the next of kin in such a case. Therefore, the persons appointed by the court under letters of administration are known as “administrators”. Once letters of administration have been obtained, the administrator is entitled to all rights which the deceased had at the time of his death. Though the administrator obtains his title only after letters of administration have been granted, such title relates back to the date of demise of the deceased.
Succession certificate (Section 370)
A succession certificate can be granted only for debts and securities which the deceased was entitled to e.g. provident fund, insurance, shares in a company or any other security of the Central Government or the State Government, etc. Property of any other description would fall under Section 212 for which letters of administration may be obtained. Section 370 is only an enabling provision, the main object of which is to facilitate collection of debts by authorising the grantee of such certificate to collect the dues of the deceased.18 Thereby, allowing the debtors to make payments to the grantee without incurring any risks19 and affording full indemnity to the debtor for the payment he makes to the grantee of such certificate. On his payment, the debtor is absolved from his obligation to pay anyone else as it conclusively concludes his part of the obligation made in good faith.20 In other words, it gives a valid discharge to the debtor when he pays the debt. Such a certificate does not give any general power of administration over the estate of the deceased. Nor does it establish title of the grantee as the heir of the deceased.
A succession certificate can be granted in favour of any person. The essential requisite for entitling a person to make the application is the existence prima facie of a beneficial interest in the applicant.21 By reason of such grant, the grantee becomes a trustee to distribute the amount payable to the deceased to his heirs and legal representatives. He does not derive any right thereunder.
Section 373(3) makes it clear that such proceedings are summary in nature; and that, the grant of such certificate is based only on the prima facie title of the applicant. Therefore, any decision arrived at in these proceedings cannot operate as a final decision, deciding the rights of contesting parties. That can be established in a separate civil suit. The amount stated in the certificate would then have to be recovered only by way of a suit.
Legal heirship certificate
A legal heirship certificate is granted under Section 2 of the Bombay Regulation VIII of 1827. The filing of such application is essentially to obtain the formal recognition of one’s existing status as a legal heir. It is not for management of the property of the deceased. One must know that there is no compulsion for any legal heir of the deceased to either apply for a legal heirship certificate or a succession certificate.22 Such a provision is only if an heir, executor or administrator chooses to have an heirship certificate at his option, so that it is safer for others who are dealing with the deceased’s assets to acknowledge and deal with such heir, executor or administrator. A person may obtain heirship certificate in any of the 3 situations, (i) if he so desires; (ii) where his right as an heir is disputed; (iii) in order to give confidence to the persons in possession of or indebted to the estate and to deal with them. Thus, grant of heirship certificate is only for the convenience of the heir; beyond that it is of no significance.23 The scope of such inquiry by the court is limited only to ascertain whether the applicant establishes that he is the heir of the person in respect of whom he seeks heirship certificate. Whether such person is mentally or physically incapacitated is of no relevance for considering such grant of heirship certificate. Neither is the court required to determine the title of the deceased or the persons claiming heirship certificate to any property. A legal heirship certificate can be filed at any time after the demise of the deceased. It is a continuous right that can be exercised so long as the status of an heir exists.
Disputes regarding inheritance are avoidable if one has a valid Will/codicil in place. It is equally important then, for the executor/administrator to proceed and discharge his duties in accordance with law. Undoubtedly, obtaining of a probate, letters of administration, succession certificate or legal heirship certificate are time consuming and money absorbing, however, one must bear in mind that if the mandate of the law is not followed to give effect to such instrument/s, the entire exercise undertaken by the deceased during his lifetime is rendered to nought.
* Counsel, Bombay High Court (Chambers of Mustafa S. Doctor, Senior Advocate).
3. [or has seen someone else sign the Will in the presence of and under the direction of the testator or has received from the testator personal acknowledgement of his signature or of such other person’s signature]
8. i.e., affixing his signature and date against the endorsement made on the document before him on the same day.
14. Anant T. Sabnis v. Vasant Pratap Pandit, 1979 SCC OnLine Bom 90
15. Refer to “Applicability of the Succession Act” above. This is a necessity only for persons mentioned in (b)(i) and (ii) above; and also to Parsis where such Wills are made within the local limits of the ordinary civil jurisdiction of the High Courts at Calcutta, Madras and Bombay and where such Wills are made outside those limits, insofar as they relate to the immovable property situated within those limits.
17. A residuary legatee is one to whom the surplus or the residue of the deceased’s property has been bequeathed.
22. Kusum Chandrakant Shankardas v. Rajeshri Chandrakant Shankardas, 2017 SCC OnLine Bom 9714.
23. Ganpati Vinayak Achwal, In re, 2014 SCC OnLine Bom 1193.